The AUSTRALIAN 

OR SECRET BALLOT LAW 

AS AMENDED == 


1910 











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STATE OF MAINE 

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THE AUSTRALIAN 

OR 


Secret Ballot Law 


AS AMENDED 


To which is Appended 


OPINION OF S. J. COURT 


WATERVILLE 

SENTINEE PUBLISHING COMPANY 

1909 



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CHAPTER 102 PUBLIC LAWS OF 1891, AS AMEND¬ 
ED BY CHAPTER 267, PUBLIC LAWS OF 1893, AND 
CHAPTERS 6 AND 169 OF PUBLIC LAWS OF 1903, 
AND CHAPTER 148 OF PUBLIC LAWS OF 1905 
AND BY CHAPTERS 61, 142 AND 149 OF PUBLIC 
LAWS OF 1907, AND CHAPTER 17 OF PUBLIC 
LAWS OF 1909, ENTITLED 


An Act to provide for the Printing and Distributing Ballots 
at the public expense and to regulate Voting for State 
and City Elections. 


Se;ct. I. All ballots cast in elections for national, state, dis¬ 
trict and county officers in cities, towns and plantations, and all 
ballots cast in municipal elections in cities, shall be printed and 
distributed at public expense as hereinafter provided. The 
printing of the ballots and cards of instructions to voters shall 
in municipal elections in cities be paid for by the several cities 
respectively, and in all other elections the printing of the ballots 
and cards of instruction, and the delivery of them to the several 
cities and towns, shall be paid for by the state. The distribu¬ 
tion of the ballots to the voters shall be paid for by the cities, 
towns and plantations respectively. 

The term state election, as used in this act, shall apply to any 
election held for the choice of a national, state, district or 
county officer, whether for a full term or for the filling of a 
vacancy, and the term state officer shall apply to any person to 
be chosen by the qualified voters at such an election. The term 
city election shall apply to any municipal election so held in a 
city, and the term city officer shall apply to any person to be 
chosen by the qualified voters at such an election. 

Sect. 2. Any convention of delegates, and any caucus or 
meeting of qualified voters, as hereinafter defined, and individ¬ 
ual voters, to the number and in the manner hereinafter speci- 



4 


SE:CRET BALI^OT hAW. 


fied, may nominate candidates for public office, whose names 
shall be placed upon the ballots to be furnished as herein pro¬ 
vided. 

Sj:ct. 3. Any convention of delegates representing a political 
party which, at the gubernatorial election next preceding, polled 
at least one per cent of the entire vote cast in the state for gov¬ 
ernor, or in the electoral district or division thereof for which 
the nomination is made, and any caucus held by such a political 
party in any such electoral district or division, may for the state, 
or for the district or division for which the convention or cau¬ 
cus is held, as the case may be, by causing a certificate of nom¬ 
ination to be duly filed, make one such nomination for each 
office therein to be filled at the election. Every such certificate 
of nomination shall state such facts as may be required as above 
for its acceptance, and as are required in section five of this 
chapter; shall be signed by the presiding officer or by the secre¬ 
tary of the convention or caucus, and shall be sworn by the 
party signing to be true, and a certificate of the oath shall be 
annexed to or made on the certificate of nomination. 

Sect. 4. Nominations of candidates for any offices to be 
filled by the voters of the state at large may be made by nom¬ 
ination papers signed in the aggregate for each candidate by not 
less than one thousand qualified voters of the state. Nomina¬ 
tions of candidates for electoral districts or divisions of the 
state, or for municipal or ward officers, may be made by nom¬ 
ination papers signed in the aggregate for each candidate by 
qualified voters of such district or division not less in number 
than one for every one hundred persons who voted at the next 
preceding gubernatorial election in such district or division, but 
in no case less than twenty-five. In the case of a first election 
to be held in a plantation, town or ward newly established, the 
number of twenty-five shall be sufficient for the nomination of 
a candidate who is to be voted for only in such plantation, town 
or ward; and in the case of a first election in a district or divi¬ 
sion newly established, other than a plantation, town or ward, 
the number of twenty-five shall be sufficient. Each voter sign¬ 
ing a nomination paper shall make his signature in person, and 
add to it his place of residence, and each voter may subscribe 
to one nomination for each office to be filled, and no more. 
The nomination papers shall before being filed be respectively 


SECRET BAEEOT LAW. 


5 


submitted to the clerks of the cities, towns or plantations in 
which the signers purport to be qualified voters, and each clerk 
to whom the same is submitted shall forthwith certify thereon 
what number of the signatures are names of qualified voters 
both in the city, town or plantation for which he is clerk and 
in the district or division for which the nomination is made; 
one of the signers to each such separate paper shall swear to 
the truth thereof, and the certificate of such oath shall be 
annexed to or made upon the nomination papers. 

Sect. 5. All certificates of nomination and nomination 
papers shall, besides containing the names of candidates, specify 
as to each, first, the office for which he is nominated; second, 
the party or political principle which he represents, expressed in 
not more than three words; third, his place of residence. ' In 
the case of electors of president and vice-president of the 
United States, the names of the candidates for president and 
vice-president may be added to the party or political appella¬ 
tion. 

Sect. 6. Certificates of nominations and nomination papers 
for the nomination of candidates for state and county officers 
and representatives to the legislature, shall be filed with the 
secretary of state on or before the tenth day of August of each 
year in which such election is held, and for candidates for 
electors of president and vice-president on or before the tenth 
day of October in each year when such election is held. Such 
certificates and papers for the nomination of candidates for the 
offices of mayor and all other offices in cities shall be filed with 
the city clerks of the respective cities at least seven days, exclu¬ 
sive of Sundays, previous to the day of such election. Such 
certificates and papers for the nomination of candidates to be 
voted for at any special election to be held for choice of repre¬ 
sentatives to congress or members of the legislature shall be 
filed with the secretary of state at least seven days, exclusive of 
Sundays, previous to the day of election. With nomination 
papers and certificates shall also be filed the consent in writing 
of the person nominated. 

Sect. 7. The certificates of nomination and nomination 
papers being filed, and being in apparent conformity with the 
provisions hereof, shall be deemed to be valid; and if not in 
apparent conformity, they may be seasonably amended under 
oath. 


6 


SECRET BALEOT EAW. 


Sect. 8. In case a candidate who has been duly nominated 
under the provisions hereof shall die before the day of elec¬ 
tion, or shall withdraw in writing, the vacancy may be supplied 
by the political party or other persons making the original nom¬ 
ination, in the manner herein provided for such nomination; or, 
if the time is insufficient therefor, then the vacancy may be sup¬ 
plied, if the nomination was made by a convention or caucus in 
such manner as the convention or caucus has previously pro¬ 
vided for the purpose, or in case of no such previous provision, 
then by a regularly elected general Or executive committee rep¬ 
resenting the political party or persons holding such convention 
or caucus. The certificates of nomination made for supplying 
such vacancy, shall state, in addition to the other facts required 
by this chapter, the name of the original nominee, the facts 
causing the vacancy, and the measures taken in accordance with 
the above requirements for filling the vacancy; said certificate 
shall be accompanied by the withdrawal, if any, and shall be 
signed and sworn to by the presiding officer or secretary of the 
convention or caucus, or by the chairman or secretary of the 
duly authorized committee, as the case may be. The name so 
supplied for the vacancy shall, if the ballots have not been 
printed for the office already, be placed on the ballots, instead of 
the original nomination; or, if the ballots have been printed, 
new ballots containing the new nominations shall, whenever 
practicable, be furnished, or, slips containing the new nomina¬ 
tion shall be printed under the direction of the secretary of 
state, which may be pasted in proper place upon the ballots and 
thereafter shall become part and parcel of said ballots as if 
originally printed thereon. 

Sect. 9. All certificates of nomination and nomination 
papers, when filed, shall forthwith be opened and kept open 
under proper regulations to public inspection, and the secretary 
of state and the several city clerks shall preserve the same in 
their respective offices not less than one year. 

Sect. 10. Every general ballot, or ballot intended for the 
use of all voters, which shall be printed in accordance with the 
provisions of this chapter, shall contain the names and resi¬ 
dences, ward residences in city elections, of all candidates whose 
nominations for any office specified in the ballot have been duly 
made and not withdrawn in accordance herewith, and the office 


SECRET BALEOT LAW. 


7 


for which they have been severally nominated and shall contain 
no other names except that in case of electors of president and 
vice-president of the United States, the names of the candidates 
for president and vice-president may be added to the party or 
political designation. The names of candidates nominated by 
any party shall be grouped together upon the ballot. Above 
each group shall be placed the name of the political party by 
which the candidates comprising such group were placed in 
nomination, or by the political designation as described in the 
certificate of nomination, or nomination papers under a square. 
If only one person be nominated by any party, or under any 
political designation, his name with the office for which he is a 
candidate shall be printed by itself under the name of such 
party or political designation. A blank space shall be left after 
the name of the candidates for each different office in which the 
voter may insert the name of any person for whom he desires 
to vote as candidate for such office. Whenever the approval of 
a constitutional amendment or other question is submitted to the 
vote of the people such question or questions shall be printed 
upon a separate ballot. The ballots shall be so printed as to 
leave a blank space, above such amendment or question so as to 
give each voter a clear opportunity to designate by a cross mark, 
X therein, his answers to the questions submitted and on the 
ballot may be printed such words as will aid the voter to do this 
as “y^sU “no,’’ and the like. The ballot shall be not less than 
four inches in width and not less than six inches in length. 
Before distribution the ballots shall be so folded in marked 
creases that their width and length when folded shall be uni¬ 
form. On the back and outside, when folded, shall be printed 
“Official ballot for,” followed by the designation of the polling 
place for which the ballot is prepared, the date of the election 
and a fac-simile of the signature of the secretary of state or city 
clerk who has caused the ballot to be printed. Except as other¬ 
wise herein provided, ballots shall be printed upon clean white 
paper without any distinguishing mark or figures thereon. 

Sect. ii. All ballots when printed shall be folded as herein¬ 
before provided, and fastened together in convenient numbers 
in packages, books or blocks, in such manner that each ballot 
may be detached and removed separately. A record of the 
number of ballots printed and furnished to each polling place 


8 


secre:t ballot law. 


shall be kept and preserved by the secretary of state and the 
several city clerks for the term of one year. 

Sect. 12. There shall be provided for each voting place, at 
which an election is to be held, two sets of such general ballots 
and two sets of ballots containing any constitutional amendment 
or other question submitted to the vote of the people, each of 
not less than sixty for every fifty and fraction of fifty votes 
cast in said voting place at the next preceding election, city, 
state or national, corresponding to the election for which said 
ballots are to be provided. 

Sect. 13. The secretary of state, in case of a state election, 
and the several city clerks, in case of city elections, shall prepare 
full instructions for the guidance of voters at such elections, as 
to obtaining ballots, as to the manner of marking them, and the 
method of gaining assistance, and as to obtaining new ballots in 
place of those accidentally spoiled, and they shall respectively 
cause the same, together with copies of sections twenty-nine, 
thirty, thirty-one and thirty-two of this chapter to be printed in 
large, clear type, on separate cards, to be called cards of instruc¬ 
tions; and they shall respectively furnish the same and the 
ballots for use in ^ach such election. They shall also cause to 
be printed on tinted paper, and without the fac-simile endorse¬ 
ments, ten or more copies of the form of the ballot provided for 
each voting place at each election therein, which shall be called 
specimen ballots, and shall be furnished with the other ballots 
provided for each such voting place. 

Sect. 14. The secretary of state shall, seven days at least, 
previous to the day of any election of state or county officers, 
transmit to the clerks in each city, town and plantation in which 
such election is to be held, printed lists containing the names, 
residences and party or political appellations of all candidates 
nominated as herein provided for such election and to be voted 
for at each polling place in each such city, town and plantation 
respectively, substantially in the form of the general ballot to be 
so used therein; and the clerks shall immediately cause the lists 
for each plantation, town or ward, as the case may be, to be con¬ 
spicuously posted in one or more public places in such planta¬ 
tion, town or ward. The secretary of state shall likewise cause 
to be published prior to the day of any such election, in at least 
two newspapers, if there be so many, printed or published in 


SECRET BAEEOT EAW. 


9 


each county, representing so far as practicable, the political 
parties which at the preceding election, cast the largest and next 
largest number of votes, a list of all the nominations made as 
herein provided and to be voted for in such county, so far as 
may be, in the form in which they shall appear, upon the gen-, 
eral ballots. New nominations made or authorized shall be 
transmitted, posted and published promptly and so far as prac¬ 
ticable, in the manner herein directed, and communications 
transmitted as herein directed by the secretary of state to any 
clerk, shall be duplicated on the succeeding day. 

Sect. 15. The city clerk of each city shall four days at least 
prior to the day of any city election therein, cause to be conspic¬ 
uously posted in one or more public places in each ward of such 
city, a printed list containing the names, residences and party or 
political appellations of all candidates nominated as herein pro¬ 
vided, and to be voted for in such ward, substantially in the 
form of the general ballot to be so used therein; and he shall 
likewise cause to be published, prior to the day of such election, 
in at least two newspapers, if there be so many, printed or pub¬ 
lished in such city, representing the political parties which cast 
at the preceding election the largest and next largest number 
of votes, a list of all the nominations made, as herein provided, 
and to be voted for in such city, so far as may be, in the form 
in which they shall appear upon the general ballots. 

Sect. 16. The secretary of state shall send, separately and at 
different times or by different methods, the two sets of general 
and special ballots, together with the specimen ballots, and cards 
of instruction printed by him, as herein provided, to the several 
city, town and plantation clerks, so as to be received by them, 
one set seventy-two hours at least, previous to the day of elec¬ 
tion, and the other set forty-eight hours at least previous 
thereto. The same shall be sent in sealed packages, with marks 
on the outside clearly designating the polling place for which 
they are intended, and the number of ballots of each kind 
enclosed; and the respective city, town and plantation clerks 
shall on delivery to them of such packages, return receipts 
therefor to the secretary. The secretary shall keep a record 
of the time when, and the manner in which the several packages 
are sent, and shall preserve for the period of one year the 
receipts of the city, town and plantation clerks. 


10 


SECRET BALLOT LAW. 


Sect. 17. The two sets of ballots together with the specimen 
ballots and cards of instruction printed by the city clerks as 
herein provided, shall be packed by them in separate sealed 
packages, with marks on the outside, clearly designating the 
polling places for which they are intended, and the number of 
ballots of each kind enclosed. 

Sect. 18. The several city, town and plantation clerks, or 
municipal officers, shall send to the presiding election officer or 
officers of such voting place before the opening of the polls on 
the day of election one set of ballots so prepared, sealed and 
marked for such voting place, and a receipt of such delivery 
shall be returned to them from the presiding election officer or 
officers present which receipt, with a record of the number of 
ballots sent, shall be kept in the clerk’s office for one year. At 
the opening of the polls in each polling place the seals of the 
packages shall be publicly broken, and the packages shall be 
opened by the presiding election officer or officers, and the pack¬ 
ages, books or blocks of ballots shall be delivered to the ballot 
clerks hereinafter provided for. The cards of instruction shall 
be immediately posted at or in each voting shelf or compart¬ 
ment provided in accordance with this chapter for the marking 
of the ballots, and not less than three such cards and not less 
than five specimen ballots shall be immediately posted in or 
about the polling rooms outside the guard rails. The second 
set of ballots shall be retained by the respective city, town and 
plantation clerks until they are called for or needed for the pur¬ 
poses of voting, and, upon the requisition in writing of the 
presiding election officer or officers of any voting place, the 
second set of ballots shall be furnished to such voting place in 
the manner above provided as to the first set. 

Sect. 19. In case the ballots to be furnished to any city, 
town or plantation or voting place therein, in accordance with 
the provisions hereof, shall fail for any reason to be duly deliv¬ 
ered, or in case after delivery they shall be destroyed, lost or 
stolen, it shall be the duty of the clerk or municipal officers of 
such city, town or plantation to cause other ballots to be pre¬ 
pared substantially in the form of the ballots so wanting and 
to be furnished; and upon receipt of other such ballots from 
him or them, accompanied by a statement under oath that the 
same have been so prepared and furnished by him, and that the 


secre:t BAEEOT law. 


II 


original ballots have so failed to be received or have been so 
destroyed, lost or stolen, the election officers shall cause the 
ballots so substituted to be used in lieu of the ballots wanting 
as above. 

Sect. 20. The municipal officers, sixty days before any elec¬ 
tion, may divide towns of more than four thousand inhabitants 
and wards of cities into convenient polling districts, (a) which 
shall contain not less than three hundred voters in each, defin¬ 
ing the limits thereof by a writing under their hands to be filed 
with and recorded by the city or town clerks; and attested 
copies thereof shall forthwith be posted by said clerks in not 
less than six public and conspicuous places in said town or 
ward, and the same shall be published in one or more of the 
newspapers, if any, printed in said city or town, thirty days at 
least before such election. They shall also ten days before any 
such election, appoint a warden and ward clerk for each polling 
place other than the one in which the warden duly elected for 
such ward shall preside, who shall perform the same duties at 
elections as presiding officers and clerks of towns and wards 
now perform. Any vacancy occurring after appointment may be 
filled by the voters of said polling district as similar vacancies 
are now filled. All such officers shall be sworn. The board 
of registration of voters for any city in which a ward has been 
so divided, and the municipal officers of any town which has 
been so divided, shall in the manner now provided for by law, 
prepare check lists of the qualified voters for each of said poll¬ 
ing districts, in lieu of the check lists now provided by law for 
the entire town or ward, to be used as hereinafter provided, 
and all provisions of law applicable to check lists for towns 
and wards shall apply to check lists for such polling districts. 

Sect. 21. The municipal officers of cities, towns and plan¬ 
tations voting in accordance with the provisions of this chapter, 
shall biennially in the month of May appoint clerks for each 
polling place; and such municipal officers shall appoint as such 
clerks such persons as shall be recommended for such appoint¬ 
ment by the several political party committees of the several 
cities, towns or plantations, representing the two political 
parties, which at the gubernatorial election next preceding such 
appointment, cast the gieatest number of votes. 


T2 


SECRET BALLOT LAW. 


For each polling place in cities and towns four clerks, and 
for each polling place in plantations, and for each island ward 
of the city of Portland and for the island district of the town 
of Cumberland two clerks shall be appointed. Said clerks 
shall equally represent each of the political parties which cast 
the largest number of votes in the state election next preceding 
their appointment. Each of said clerks shall be sworn to the 
faithful performance of his duties, and shall hold office for two 
years from the date of his appointment, and until a successor 
is appointed, and qualified, or he vacates the office. Vacancies 
occurring in the office of election or ballot clerks shall be forth¬ 
with filled by the municipal officers in towns and plantations 
and by the mayors of cities in manner hereinbefore provided. 

Such election clerks shall attend at the times and places 
designated for meetings in their respective wards, towns or 
plantations for the election of any national, state, county, city 
or ward officers, and for the determination of any question 
submitted to the qualified voters of any city by lawful 
authority, shall be present at and witness the counting by the 
presiding election officer or officers of all votes cast in such 
meetings, and shall receive such reasonable compensation for 
each day's actual service as the municipal officers of their 
respective cities, towns and plantations may determine. And 
on the recommendation of the political party committee of 
any other party represented on the official ballot, said municipal 
officers shall appoint one such election clerk in each polling 
place, for such political party, who shall be qualified for the 
performance of his duties, in like manner as the clerks of the 
two before mentioned parties, shall hold office for a like term, 
or for such part thereof as the party for which he is appointed 
maintains its right to be represented upon the official ballot, 
and who during said term, shall have like rights and duties 
with the before mentioned clerks to be present at and witness 
the counting of votes, and shall serve with or without com¬ 
pensation as the municipal officers in any case may deem 
advisable, vacancies occurring in case of said clerks to be filled 
as in case of other clerks herein mentioned. 

No person shall be eligible to the position of election clerk 
in any ward, town or plantation where he is a candidate to be 
voted for. 


se^crkt ballot law. 


13 


Two of the clerks in each polling place, one from each 
political party shall be detailed by the municipal ofihcers to act 
as ballot clerks. The two ballot clerks thus detailed and 
appointed in each polling place shall have the charge of the 
ballots therein and shall furnish them to the voters in the 
manner hereinafter set forth. 

A duplicate list of the qualified voters in each ward, town 
or plantation shall be prepared for the use of the ballot clerks, 
and all the provisions of law relative to the preparation, fur¬ 
nishing and preservation of check lists shall apply to such 
duplicate lists. 

Provisions in the charter of any city for the election of two 
persons to assist the warden in receiving, sorting and counting 
the ballots, are not ai¥ected by the provisions hereof; but 
persons so elected shall be deemed election clerks for that pur¬ 
pose; they shall equally represent the two political parties 
which, at the state election next preceding cast the greatest 
number of votes. 

Se^ct. 22. The municipal officers in each city, town or plan¬ 
tation, as aforesaid, shall cause the polling places therein to be 
suitably provided with a sufficient number of voting shelves or 
compartments, at or in which voters may conveniently mark 
their ballots, so that in the marking thereof they shall be 
screened from the observation of others, and a guard rail shall 
be so constructed and placed that only such persons as are inside 
said rail can approach within six feet of the ballot boxes, and 
of such voting shelves or compartments. The arrangement 
shall be such that neither the ballot boxes nor the voting shelves 
or compartments shall be hidden from the view of persons just 
outside the guard rail. The number of such voting shelves or 
compartments shall not be less than one for every one hundred 
voters qualified to vote at such polling place, and not less than 
three in any town, and not less than five in any ward of a city. 
No person other than the election officers, election clerks and 
voters admitted as hereinafter provided, shall be permitted 
within said rail, except by authority of the presiding election 
officer or officers for the purpose of keeping order and enforc¬ 
ing the law. Each voting shelf or compartment shall be kept 
provided with proper supplies and conveniences for marking 
the ballots. [See amendment to section 22, chapter 6 of R. S. 
as appears on page 17.] 


14 


se:cre;t ballot law. 


Sect. 23. Any person desiring to vote shall give his name, 
and, if requested to do so, his residence, to one of the ballot 
clerks, who shall thereupon announce the same in a loud and 
distinct tone of voice, clear and audible, and if such name is 
found upon the check-list by the ballot clerk having charge 
thereof, he shall likewise repeat the said name, and the voter 
shall be allowed to enter the space enclosed by the guard rail, as 
above provided. The ballot clerk shall give him one, and only 
one ballot, and his name shall be immediately checked on said 
list. 

Besides the election officers, and election clerks, not more 
than two voters in excess of the number of voting shelves, or 
compartments provided, shall be allowed in said inclosed space 
at one time. 

Sect. 24. On receipt of his ballot the voter shall forthwith, 
and without leaving the inclosed space, retire alone to one of 
the voting shelves or compartments so provided, and shall pre¬ 
pare his ballot by marking in the appropriate margin or place, 
a cross (X) as follows: He may place such mark within the 
square above the name of the party group or ticket, in which 
case he shall be dee^med to have voted for all the persons named 
in the group under such party or designation. And if the voter 
shall desire to vote for any person or persons, whose name or 
names are not printed as candidates on the party group or 
ticket, he may erase any name or names which are printed on 
the group or party ticket, and under the name or names so 
erased he may fill in the name or names of the candidates of his 
choice. Or if the voter places and sticks on and over the name 
or names of any candidate or candidates for any office or 
offices, a small strip or strips of paper, commonly known as a 
sticker or stickers, bearing thereon a name or names other than 
the name or names of the candidate or candidates so erased or 
covered up, the name or names of such candidate or candidates 
so covered shall be considered to be erased from the ballot, 
and the person or persons whose name or names shall so appear 
on such strip or strips of paper so placed and stuck on the 
ballot, shall be deemed to be voted for by the voter as candidate 
or candidates for such office or offices. Or if the voter does 
not desire to vote for a person or persons whose name or names 
are printed upon the party group or ticket, he may erase such 


Sf:CRJ:T BALLOT LAW. 


15 


name or names with the effect that the ballot shall not be 
counted for the candidate or candidates whose names are so 
erased. In case of a question submitted to the vote of the 
people he shall place such mark in the appropriate margin above 
the answer which he desires to give. Before leaving the voting 
shelf or compartment, the voter shall fold his ballot without 
displaying the marks thereon, in the same way it was folded 
when received by him, and he shall keep the same so folded 
until he has voted. He shall vote in the manner provided by 
law before leaving the enclosed space, and shall deposit his 
ballot in the box with the official endorsement uppermost. He 
shall mark and deposit his ballot without undue delay and shall 
quit said inclosed space as soon as he has voted. No such 
voter shall be allowed to occupy a voting shelf or compartment 
already occupied by another, or to remain within said inclosed 
space more than ten minutes, or to occupy a voting shelf 
or compartment for more than five minutes in case all of such 
shelves or compartments are in use, and other voters are wait¬ 
ing to occupy the same. No voter not an election officer or an 
election clerk, whose name has been checked on the list of the 
ballot clerks, shall be allowed to re-enter said enclosed space, 
during said election. The presiding election officer or officers, 
for the time being, shall secure the observance of the provisions 
of this section. 

Sect. 25. No person shall take or remove any ballot from 
the polling place before the close of the polls. If any voter 
spoils a ballot he may successively obtain others, one at a time, 
not exceeding three in all, upon returning each spoiled one. 
The ballots thus returned shall be immediately canceled, and 
together with those not distributed to the voters, shall be pre¬ 
served, and with the check lists used, which shall be certified 
by the ballot clerks, to be such, shall be secured, sealed, and sent 
to the several city, town and plantation clerks, and by them be 
preserved for six months as a public record. The ballots shall 
be sorted and counted in open town or ward meeting in such 
manner as to afford the electors ample opportunity to observe 
the sorting and counting; and when the ballots have been sorted 
and counted and the results declared and recorded, all the bal¬ 
lots shall, in open meeting, be sealed in a package, which said 
package, together with the check lists sealed in the same manner 


i6 


se:cre:t ballot law. 


as the ballots, shall forthwith be returned to the city, town or 
plantation clerk, to be preserved by him as a public record, and 
shall be kept by him securely locked in an iron safe, whenever 
such city, town or plantation shall so provide the same for his 
use as such clerk, for six months, and any warden, ballot clerk, 
city or town clerk or other person who shall abstract from or in 
any manner tamper with said packages, or who shall in any 
manner abstract from or tamper with the unused ballots, and 
any such clerk who shall wilfully and intentionally refuse or 
neglect to so safely keep secured such ballots, as herein above 
provided, shall be punished by a fine not less than two hundred 
nor more than one thousand dollars, or by imprisonment for 
not less than ninety days nor more than two years. 

Sect. 26. Any voter who shall declare to the presiding elec¬ 
tion officer or officers that he cannot mark his ballot by reason 
of physical disability, or from inability to read the same, shall 
receive the assistance in the marking of his ballot, of two of the 
election clerks; such clerks shall not both represent one and the 
same political party, and they shall certify on the outside of 
such ballot that the same was marked by them, or by the voter 
with their assistance, and thereafter shall give no information 
concerning the same. The presiding election officer or officers 
may require every voter, who applies for such assistance, to 
make oath to his inability to mark his ballot, before such clerks 
shall be directed to assist as aforesaid, and such officer or 
officers are hereby qualified to administer such oath, and no 
clerk shall assist or ofifer to assist any voter in marking his 
ballot until directed so to do by the presiding election officer or 
officers. 

Sect. 27. If a voter marks more names for any one office 
than there are persons to be elected to such office, or if for any 
reason it is impossible to determine the voter’s choice for an 
office to be filled, his ballot shall not be counted for such office. 
No ballot without the official indorsement shall, except as herein 
otherwise provided, be allowed to be deposited in the ballot box, 
and none but ballots provided in accordance with the provisions 
of this chapter shall be counted. Ballots not counted shall be 
marked defective on the back thereof, and shall be preserved, as 
required by section twenty-five. 


SE^CRET BARI^OT BAW. 


17 


Sect. 28. Meetings for the election of national, state, county 
and municipal officers may be opened as early as six o’clock in 
the forenoon, and in no case shall the polls be kept open later 
than five o’clock in the afternoon, and a notice of the time of 
opening and closing shall be given in the warrant calling the 
meeting. 

Sect. 29. A voter who shall, except as herein otherwise pro¬ 
vided, allow his ballot to be seen by any person with an appar¬ 
ent intention of letting it be known how he is about to vote or 
who shall make a false statement as to his inability to mark his 
ballot, or any person who shall interfere, or attempt to interfere 
with any voter when inside said inclosed space, or when mark¬ 
ing his ballot, or who shall endeavor to induce any voter before 
voting to sho\y how he marks or has marked his ballot, shall be 
punished by fine of not less than five, nor more than one hun¬ 
dred dollars; and election officers shall report any person so 
doing to a police officer or constable, whose duty it shall be to 
see that the offender is duly brought before the proper court. 

Sect. 30. Any person who shall, prior to an election wilfully 
deface or destroy any list of candidates posted in accordance 
with the provisions of this act, or who, during an election, shall 
wilfully deface, tear down, remove or destroy any card of 
instructions or specimen ballot printed or posted for the instruc¬ 
tion of voters, or who shall, during an election, wilfully remove 
or destroy any of the supplies or conveniences furnished to 
enable a voter to prepare his ballot, or shall wilfully hinder the 
voting of others, shall be punished by fine of not less than five 
nor more than one hundred dollars. 

Sect. 31. Any person who shall falsely make or wilfully 
deface or destroy any certificate of nomination or nomination 
paper, or any part thereof or any letter of withdrawal; or file 
any certificate of nomination or nomination paper, or letter of 
withdrawal, knowing the same or any part thereof to be falsely 
made; or suppress any certificate of nomination or nomination 
paper, or any part thereof which has been duly filed; or forge 
or falsely make the official indorsement on any ballot; or wil¬ 
fully destroy or deface any ballot, or wilfully delay the delivery 
of any ballots or shall take or remove any ballot outside of the 
inclosure provided for voting before the close of the polls, shall 
be punished by fine not exceeding one thousand dollars or by 


i8 


SECRET BALLOT LAW. 


imprisonment in the jail for not more than one year, or by both 
such fine and imprisonment. 

Sect. 32. Any public officer upon whom a duty is imposed 
by sections one to twenty-eight, both inclusive, of this chapter, 
who shall wilfully neglect to perform such duty, or who shall 
wilfully perform it in such a way as to hinder the objects of this 
act, shall be punished by a fine of not less than five, nor more 
than one thousand dollars, or by imprisonment in jail for not 
more than one year, or by both such fine and imprisonment. 

Sect. 33. Any election or ballot clerk who shall assist, or 
offer to assist any voter, before such clerks shall have been 
directed by the presiding officer or officers to so assist such 
voter, shall be punished by a fine of not less than twenty-five, 
nor more than one hundred dollars or by imprisonment not 
exceeding sixty days for each offense, and thereafter shall be 
disqualified from holding the office of election or ballot clerk. 

Chapter 148—Laws oe 1905. 

An Act to amend section twenty-two of chapter six of the 

Revised Statutes, relating to the regulation and conduct of 

Elections. 

Section i. Section twenty-two of chapter six of the revised 
statutes is hereby amended by striking out the word ‘"or” in 
the third line between the words “shelves” and “compart¬ 
ments,” and inserting in lieu thereof the word ‘and’ and by 
inserting after the word “others” in the fifth line of said section 
the following: ‘and each voting shelf and compartment shall 
have a wooden swing door so arranged that the top thereof shall 
be not less than six feet from the floor and the bottom of the 
door shall be at least two feet and six inches from the floor. 
And such door shall be shut while the voter is within the com¬ 
partment and no one shall be allowed therein with him unless 
he calls for assistance in the marking of his ballot and such 
assistance shall be so furnished according to the provisions of 
this act.’ And by striking out the word “or” in the eighth line 
between the words “shelves” and “compartments” and insert¬ 
ing in lieu thereof the word ‘and,’ and by striking out the words 
“the arrangement shall be such that neither the ballot boxes nor 
the voting shelves nor the compartments shall be hidden from 
the persons just outside the guard rail,” and inserting in lieu 


SECRET ballot law. 


19 


thereof the following: ‘the arrangement shall be such that the 
ballot boxes shall not be hidden from the view of persons pres¬ 
ent and the voting shelves and the compartments shall be so 
arranged that the doors of each compartment shall be nearest 
the guard rail, so as to admit to full view of the persons outside 
of the guard rail those who enter and leave each compartment.’ 
And by striking out the word “or” in the seventeenth line of 
said section between the words “shelf” and “compartment” 
and inserting in lieu thereof the word ‘and,’ so that said section, 
as amended, shall read as follows: 

‘Section 22. The municipal officers in each city, town or 
plantation, as aforesaid, shall cause the polling places therein to 
be suitably provided with a sufficient number of voting shelves 
and compartments, at or in which voters may conveniently mark 
their ballots so that in the marking thereof they shall be 
screened from the observation of others, and each voting shelf 
and compartment shall have a wooden swing door so arranged 
that the top thereof shall be not less than six feet from the floor 
and the bottom of the door shall be at least two feet and six 
inches from the floor. And such door shall be shut while the 
voter is within the compartment and no one shall be allowed 
therein with him, unless he calls for assistance in the marking 
of his ballot and such assistance shall be so furnished according 
to the provisions of this act, and a guard rail shall be so con¬ 
structed and placed that only such persons as are inside said 
rail can approach within six feet of the ballot boxes and of such 
voting shelves and compartments. The arrangement shall be 
such that the ballot boxes shall not be hidden from the view of 
persons present and the voting shelves and compartments shall 
be so arranged that the door of each compartment shall be next 
to the guard rail, so as to admit to full view of the persons just 
outside of the guard rail those who enter and leave each com¬ 
partment. The number of such voting shelves and compart¬ 
ments shall not be less than one for every one hundred voters 
qualified to vote at such poling place, and not less than three 
in any town, and not less than five in any ward of a city. No 
persons other than the election officers, election clerks and 
voters admitted as hereinafter provided, shall be permitted 
within said rail, except by authority of the presiding election 
officer or officers for the purpose of keeping order and enforc- 


20 


se:cre:t ballot law. 


ing the law. Each voting shelf and compartment shall be kept 
provided with proper supplies and conveniences for marking 
the ballots.’ 

Sect. 2. This act shall take effect only in such towns and 
cities as by a majority vote of the legal voters so voting in such 
town or city shall adopt it. 

[Approved March 24, 1905.] 


Chapter 20—Public Laws of 1911. 


An Act to repeal Section two of Chapter one hundred and forty-eight of the Public Laws 
of one thousand nine hundred and five relating to the Construction of Booths at 
Polling Places. 


Be it enacted by the People of the State of Maine, as follows: 


‘Section two of chapter one hundred and forty-eight of the 
public laws of one thousand nine hundred and five is hereby 
repealed.’ 


Approved March 1, 1911. 


Chapter 71—Public Laws of 1911. 

An Act to amend Section twenty-seven of Chapter six of the Revised Statutes, relating 
to Distinguishing Marks on Ballots. 

Be it enacted by the People of the State of Maine, as follows: 

Section twenty-seven of chapter six of the revised statutes 
is hereby amended by adding to said section the following: 
‘No marks, other than those authorized by law, shall be placed 
upon the ballot by the voter but no ballot, after having been 
received by the election officers, shall be rejected as defective 
because of marks, other than those authorized by law, having 
been placed upon it by the voter, unless such marks are deemed 
to have been made with fraudulent intent, and no ballot shall 
be rejected as defective because of any irregularity in the form 
of the cross in the square at the head of the party column 
unless such irregularity is deemed to have been intentional and 
made with a fraudulent purpose’ so that said section shall read 
as follows: 

‘Section 27. If a voter marks more names for any one office 
than there are persons to be elected to such office, or if for 
any reason it is impossible to determine the voter’s choice for 
an office to bfe filled, his ballot shall not be counted for such 


office. No ballot without the official indorsement shall, except 
as herein otherwise provided, be allowed to be deposited in 
the ballot box, and none but ballots provided in accordance 
with the provisions of this chapter shall be counted. Ballots 
not counted shall be marked defective on the back thereof, 
and shall be preserved, as required by section twenty-five. No 
marks, other than those authorized by law, shall be placed 
upon the ballot by the voter but no ballot, after having been 
received by the election officers, shall be rejected as defective 
because of marks, other than those authorized by law, having 
been placed upon it by the voter, unless such marks are deemed 
to have been made with fraudulent intent, and no ballot shall 
be rejected as defective because of any irregularity in the 
form of the cross in the square at the head of the party column 
unless such irregularity is deemed to have been intentional and 
made with a fraudulent purpose.’ 


Approved March 22, 1911. 


Chapter 94—Public Laws of 1911. 


An Act to amend Section twenty of Chapter six of the Revised Statutes, relating to 
' Polling Places. 


Be it enacted by the People of the State of Maine, as follows: 

Section twenty of chapter six of the revised statutes is here¬ 
by amended by inserting after the word ‘"each” in the fourth 
line thereof the words, ‘and on application of not less than 
twenty-five voters all of whom reside not less than six miles 
by road from the usual polling place, nor more than eight miles 
in an air line from each other, may establish in a town of less 
than four thousand inhabitants a separate polling district, which 
shall include the territory in which said petitioners reside,’ so 
that said section as amended shall read as follows: 

‘Section 20. The municipal officers, sixty days before any 
election, may divide towns of more than four thousand in¬ 
habitants and wards of cities into convenient polling districts, 
which shall contain not less than three hundred voters in each, 
and on application of not less than twenty-five voters all of 


whom reside not less than six miles by road from the usual 
polling place, nor more than eight miles in an air line from 
each other, may establish in a town of less than four thou¬ 
sand inhabitants a separate polling district, which shall include 
the territory in which said petitioners reside, defining the limits 
thereof by a writing under their hands to be filed with and re¬ 
corded by the city or town clerks; and attested copies thereof 
shall forthwith be posted by said clerks in not less than six 
public and conspicuous places in said towns or ward, and the 
same shall be published in one or more of the newspapers, if 
any, printed- in said city or town, thirty days at least before such 
election. They shall also ten days before any such election, 
appoint a warden and ward clerk for each polling place other 
than the one in which the wardens duly elected for such ward 
shall preside, who shall perform the same duties at elections 
as presiding officers and clerks of towns and wards now per¬ 
form. Any vacancy occurring after appointment may be filled 
by the voters of said polling district as similar‘vacancies are 
now filled. All such officers, shall be sworn. The board of 
registration of voters for any city in which a ward has been 
so divided, and the municipal officers of any town which has 
been so divided, shall in the manner now provided for by law, 
prepare check lists of the qualified voters for each of said poll¬ 
ing districts, in lieu of the check lists now provided by law 
for the entire town or ward, to be used as hereinafter pro¬ 
vided, and all provisions of law applicable to check lists for 
towns and wards shall apply to check lists for such polling 
district’ 


Approved March 27, 1911 






OPINION OF S. J. COURT. 


PENOBSCOT COUNTY. 


WiLiviAM F. Curran, vs. WiuIvIam Z. Clayton. 

Penobscot. Announced July 19, 1893. Opinion November 

8, 1893. 

Elections. Australian Ballot Lazv. Defective Ballots. Deci¬ 
sion of Board of Aldermen—when reviezuable. R. S., 
c. 4; Stats. 1880, c. ips; i8pi, c. 102; i8ps, c. 260. 

The elective franchise must be exercised under such regulations and 
restrictions as the legislature may deem reasonably necessary to main¬ 
tain order at elections, prevent intimidation, bribery and fraud, pre¬ 
serve the purity of the ballot I)Ox and thus secure a genuine expression 
of public sentiment. 

Statutes designed to secure complete and inviolable secrecy of ballots 
cast at public elections should be construed, under established rules 
with reference to the mischief to be remedied and the object to be 
accomplished; and interpreted,Uf practicable, so as to promote and 
not destroy the purpose of their enactments. 

The enactment of the Stat. of 1891, c. 102, popularly known as the “Aus¬ 
tralian Ballot Law,” was designed to inaugurate an important departure 
from the mode of voting which had existed in this State prior to its 
passage. 

Its distinguishing feature is its careful provision for a secret ballot. 

Under this statute giving the voter a clear opportunity to designate by a 
cross mark (X) his choice of candidates, the place and method of 
marking the ballot being regulated and defined in the statute, it zvas 
held that ballots defectively and illegally marked as follows should be 

rejected:— 

(i.) Where the cross (X) was placed above the name of the candi¬ 
date, and not in the appropriate place at the right of it; 

(2.) Where there was a cross (X) above and also one beneath a 
candidate’s name, but none at the right of it; 

(3.) Where the cross (X) was placed at the left of' the name of 
the candidate; * 




22 


SECRET BAEEOT EAW. 


(4.) Where there was a cross (X) under the party name at the 
head of the ticket and one at the left of the defendant’s name on 
another party ticket; 

(5.) Where there was no cross (X) whatever, but a short, straight 
line drawn across the square at the right of the party name at the head 
of the ticket; 

(6.) Where there was a cross (X) in the square at the right of the 
name of each candidate except that for Mayor, on one party ticket, 
and a cross (X) in the square at the right of the party name on 
another ticket. 

The board of aldermen in the city of Bangor re-examined the ballots cast 
for aldermen in ward seven, counted for defendant the six ballots above 
described, and declaring that there was no choice, ordered a new elec¬ 
tion to be held. The defendant securing a majority of the ballots then 
cast claimed to hold the office by virtue of the second election ; that 
the subject matter was within the exclusive jurisdiction of the board 
of aldermen; and that the ballots alleged to be defective and irregular 
were properly counted for him. The plaintiff thereupon began his 
proceeding in equity under R. S., c. 4, and Stat. of 1893, c. 260, amend¬ 
atory thereto, asking the court 4 o take jurisdiction of the matter, and 
require the defendant to surrender the office to the plaintiff. Held; 
that the decision of the board of aldermen is subject to review by this 
court; that the city charter is to be construed as affording a cumulative 
or primary tribunal only, and not an exclusive one; that it does not 
preclude a contestant from resorting to the court for a revision of a 
question of law; and that the decision of the board of aldermen 
involved the determination of a question of law and not an issue of 
fact, or a matter of discretion. 


Francis Ke:i:fe, Petitioner for Mandamus, 
vs. 

• Frank E. DonneeIv. 

York. Opinion November 25, 1898. 

Elections. Ballots and Inspection. Town Clerk Mandamus. 
Stat. i8pi, c. 102, s. 25; 18^ c. 102, s. 16. 

Emery, J. By Act of 1891, c. 102, s. 25, as amended by Act of 1893, c. 
267, being “An Act to provide for the printing and distributing ballots 
at the public expense, and to regulate voting for State and City elec¬ 
tions,” it is provided that after the election is over “when the ballots 
have been sorted and counted and the result declared and recorded, all 
the ballots shall in open meeting be sealed in a package which said 
package, together with the check lists sealed in the same manner as the 
ballots, shall be forthwith delivered to the city, town or plantation clerk 
to be preserved by him as a public record for six months.” The clerk 
and all other persons are forbidden to “abstract from or in any manner 
to tamper with” said package. 

At the State election of 1898 the petitioner’s name was on the official 
ballots in the town of Kittery as a candidate for representative to the 
legislature. According to “the result declared and recorded” he failed 
of an election, but he believed that if the ballots had been properly 
sorted and counted he would appear to be elected. He desires to 
inspect the ballots used in that election and which were scaled in a 
package and returned to the town clerk of Kittery, and are now in his 
office still sealed up in that package, the six months not having,expired. 
Has he any legal right to inspect them? It is argued that he can only 
inspect the exterior of the package, that it is the package sealed and to 
be kept sealed, and not its contents, which is to be “preserved by the 
clerk as a public record.” Such a construction would leave the statutes 
without meaning or purpose. 

The only use suggested in the argument for packages which are to be 
kept sealed is that they can be taken into the courts or legislature and 
there unsealed and sealed again. There is, lT4)wever, no suggestion in 
the Act that the packages are to be taken from the clerk’s office, or 
that an inspection of their contents can be had only by the court or 
legislature. 


24 


SECRET BALLOT LAW. 


The contents of the packages, the ballots, are the concern of the statutes. 
Its language must be applied to them. They are to be preserved. They 
are to be “the public record,” and their place is in the custody of the 
town clerk. A record, however, is not public unless it can be inspected 
by any person interested in what it shows. 

It is again urged that the clerk is forbidden to “in any manner tamper 
with” the package. Taken by itself this language might indicate that 
the clerk could not open the package, though the word “tamper” in a 
criminal statute at least, has a limited meaning of improper inter¬ 
ference “as for the purpose of alteration; and to make objectionable 
or unauthorized changes,” (Cent. Diet.) Taken in connection with 
the language of the statutes declaring the packages (in their contents) 
to be public records, it is evident that the clerk is not forbidden to 
open the packages to enable interested persons to inspect the ballots. 

We think the petitioner has a legal right to inspect the ballots, a right 
which the town clerk must accord him, and that the mandamus must 
be made peremptory. It does not follow, however, that the petitioner 
or any one in his behalf can sort or count, or in any way handle or 
even touch the ballots. He can inspect them and they must be exposed 
to his inspection, but they are all the while in the custody of the clerk 
and he is responsible for them. The inspection must be in his presence, 
and he can make and insist on such regulations or restrictions con¬ 
sistent with the right of inspection, as will secure every ballot like any 
other record from loss, impairment or change in any respect. The 
clerk can afterwards re-seal the package for greater security until 
inspection is again required by some person interested. 



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